Defendants urge a finding of immunity because the actions involved meet the two requirements set forth in Johnson v. Alldredge, supra, for a finding of common law executive immunity. Johnson held that a federal prison warden was entitled to summary judgment in an action by a federal prisoner for deprivation of constitutional rights on the ground of common law executive immunity. Johnson, supra at 826. In reaching this decision, the court held that executive immunity potentially extended to any federal executive official and delineated two requirements for a finding of immunity. First, the challenged action must involve an exercise of judgment and second, the challenged action must be within the outer perimeter of the defendant-official's duties. Id. at 824. On the basis of two uncontroverted affidavits submitted by the defendant warden and his immediate superior attesting to the scope of the warden's authority, the court concluded that the warden had satisfied the above immunity requirements and was entitled to immunity as a matter of law.

In cases where the authority of the official or the nature of the actions taken by him were unclear, we have deferred decisions regarding immunity until further development of those facts.

Johnson, supra at 826, n. 8. See also Safeguard Mutual Insurance Co., supra, where the district court dismissal on a 12(b) motion of a civil rights complaint on the basis of governmental immunity was reversed by the Third Circuit because the record did not sufficiently establish the nature of the defendants' governmental positions and the scope of their authority. In the instant case, the record provides inadequate basis for determining whether the immunity requirements of Johnson have been satisfied. The motion for summary judgment on the ground of immunity must therefore be denied.
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II. FAILURE TO STATE A CLAIM

Defendants' second argument for summary judgment is that the allegations in plaintiff's pro se complaint, even when supplemented by plaintiff's answers to interrogatories, fail to state a claim upon which relief may be granted. In determining whether plaintiff's allegations state a claim for relief several concepts must be kept in mind. Pro se civil rights complaints are held to less stringent standards than formal pleadings drafted by lawyers in deciding whether a claim for relief is established,
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Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1200-1201 (3d Cir. 1973); Gray v. Creamer, 465 F.2d 179, 181-182 (3d Cir. 1972), and such complaints are to be liberally construed by reviewing courts. United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078, 1079 (3d Cir. 1971); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir.), cert. denied, 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691 (1969). Furthermore, as this is a motion for summary judgment, a district court must resolve all inferences of fact, doubts and issues of credibility against the moving party. Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). With these standards in view, I now address the allegations of plaintiff's complaint.

With respect to the conditions of plaintiff's confinement, it is well established that solitary confinement is not per se cruel and unusual punishment and that the temporary inconveniences and discomforts incident thereto cannot be regarded as a basis for judicial relief. United States ex rel. Tyrrell v. Speaker, supra at 1202; Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir. 1969); Bauer v. Sielaff, 372 F. Supp. 1104, 1109 (E.D. Pa. 1974); United States ex rel. Bracey v. Rundle, 368 F. Supp. 1186, 1191 (E.D. Pa. 1973). However, conditions of confinement of inhuman and barbaric proportions which shock the conscience of the court constitute cruel and unusual punishment and are actionable under the Civil Rights Act. See, e.g., Wright v. McMann, 387 F.2d 519, 521, 525 (2d Cir. 1967) (allegations of solitary confinement in an unheated cell with open windows in winter encrusted with slime and human excrement without clothing or rudimentary hygienic supplies under threat of beatings would, if established, constitute cruel and unusual punishment.) Knuckles v. Prasse, 302 F. Supp. 1036, 1061-1062 (E.D. Pa. 1969), aff'd, 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2262, 29 L. Ed. 2d 717 (1971) (Confinement of two prisoners for 2 1/2 days in a cell 6 ' x 9 ' 11" with no window or light, a single bed, no clothing or toilet articles and a malfunctioning toilet constituted cruel and unusual punishment.). See also Landman v. Royster, 333 F. Supp. 621, 648-649 (E.D. Va. 1971); Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966). This constitutional standard of "cruel and unusual punishment" is not readily adaptable to precise mathematical application. It rather depends on a careful analysis of the totality of circumstances in each case. United States ex rel. Bracey v. Rundle, supra at 1191. In the instant case, all of the facts concerning the conditions of plaintiff's confinement have not been presented to the court.
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Until the record is more fully developed, it cannot be said at this stage that the plaintiff can prove no set of facts which would entitle him to relief on the basis of "cruel and unusual punishment." This is especially true in the instant case, because in addition to the allegations concerning confinement conditions, plaintiff has also alleged several instances of medical treatment denial to support his claim of "cruel and unusual punishment." Although it is clear that claims of mere negligent medical treatment are not cognizable under the Civil Rights Act, Gittlemacker v. Prasse, 428 F.2d 1, 5-6 (3d Cir. 1970); Church v. Hegstrom, 416 F.2d 449, 450-451 (2d Cir. 1969), deliberate denial of necessary medical treatment can constitute "cruel and unusual punishment." Martinez v. Mancusi, 443 F.2d 921, 923-925 (2d Cir. 1970); United States ex rel. Ingram v. Montgomery County Prison Board, 369 F. Supp. 873, 874-875 (E.D. Pa. 1974); Ramsey v. Ciccone, 310 F. Supp. 600, 604-605 (W.D. Mo. 1970). Plaintiff's allegations of medical treatment denial, which are supported by an uncontroverted affidavit, are, therefore, clearly sufficient to establish a claim for relief on the basis of "cruel and unusual punishment."
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&nbsp;Plaintiff's final claim is for restitution for personal belongings which were missing after his property was sent to him in the maximum security cell block. It must be emphasized that to state a claim under the civil rights act, a plaintiff must allege conduct which deprives him of rights, privileges or immunities secured to him by the Constitution or laws of the United States. Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972); Gittlemacker v. Prasse, supra at 6; Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965). In this regard, "it becomes important to delineate that conduct which is actionable in state courts as a tort, and that which is actionable in federal courts under § 1983. The two rights of action do not always stand in pari materia. Some common law and statutory torts, although actionable in a state forum, do not rise to constitutional dimensions." Howell v. Cataldi, supra at 278. In the instant case, even assuming that plaintiff could establish that defendants are liable for the loss of his personal articles, it would seem that such liability would be founded on either a theory of common law negligence or breach of a state statutory duty -- neither of which are cognizable actions under the Civil Rights Act. Id. Plaintiff's claim for restitution should, therefore, be dismissed. However, since this case will involve ...

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